Thursday, November 19, 2009

Galleria Plus v. Hanmi Bank (Cal. Ct. App. - Nov. 19, 2009)

I understand where Justice Epstein's coming from. I really do. But I just don't agree.

Were I on the Court of Appeal, I could write a dissent that would be even more concise than Justice Epstein's opinion. Here's what it'd say:

"I respectfully dissent. Everyone admits that respondent (1) wrote a separate notice of motion and motion for sanctions, (2) served it on appellant, (3) and gave appellant a 21-day safe harbor period before filing the motion so he could safely withdraw it. That's precisely what CCP 128.7 requires. The only alleged deficiency in these papers was that the 'Date' and 'Time' listed for the motion were left blank; or, more accurately, listed as 'AAA' and 'BBB'. But that's understandable. The motion hadn't been -- indeed, couldn't be -- filed yet. Indeed, it might well never be, which is the whole purpose of the safe harbor provisions in the first place, since we assume and/or hope that appellant will withdraw the frivolous pleading. As a result, respondent understandably did not reserve a particular hearing date until after the 21-day period expired. Only after appellant didn't do what it should have -- withdrawn the frivolous paper -- did respondent obtain from the court and tell appellant the particular hearing date and time. None of which came as a shock to appellant, who (1) was so notified in the initial papers, (2) timely opposed the motion, (3) showed up at the appointed time and date, and (4) was indeed sanctioned.

My esteemed colleagues nonetheless reverse the sanction award solely due to the blank date and time in the motion. I would not be so parsimonious. I fully agree that CCP 128.7 motions must be written and served as motions, but this one was. It provided notice, gave them 21 days, and made clear that absent withdrawal of the offending pleading the motion would be filed on a date to be thereafter specified. To me, that it all that CCP 128.7 requires.

Moreover, not only do I see no need for a party to reserve a hearing date for a CCP 128.7 motion in advance of actually filing the motion, but substantial reasons not to do so. Particularly in this era of budgetary shortfalls, there is a serious downside to my colleague's approach, will requires parties to reserve court dates for motions that may well not -- indeed, should not -- go forward. Motion dates reserved but abandoned are deadweight losses. I see no reason to encourage, much less require, such a wasteful practice. Nor do I believe it to be the intent of the Legislature (much less anywhere expressed in the statute) to require litigants to do so.

There was no harm whatsoever from the initially omitted dates. Appellants knew if they did not withdraw the allegedly frivolous pleading, the motion would be filed. It was. For a hearing on a date for which appellants were given timely notice and at which they appeared. For me, this is more than enough.

The law disregards trifles. The law respects form less than substance. When the reason of a rule ceases, so should the rule itself.

These three principles are not only relevant -- indeed, in my view, properly dispositive -- here, but also derive not merely from my own head. They are, respectively, Sections 3533, 3528 and 3510 of the California Civil Code.

To me, the blanks here are fine; indeed, may even be preferable. And I see nothing in Section 128.7 or legislative intent that convinces me of the contrary. If there was an error here, it was a trifle, and assuredly one of form rather than substance. If appellants filed a frivolous paper, we should not reverse their sanction on the basis of two insubstantial blanks that were rightly filled in later.